This Agreement was last updated on 1 October 2014.
BY ACCEPTING THIS AGREEMENT, EITHER BY CLICKING A BOX INDICATING YOUR ACCEPTANCE OR BY EXECUTING AN ORDER FORM THAT REFERENCES THIS AGREEMENT OR BY USING THE CERTIVOX SERVICES, YOU AGREE TO THE TERMS OF THIS AGREEMENT AND CONFIRM YOU ARE NOT BARRED UNDER ANY APPLICABLE LAWS FROM DOING SO. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY AND ITS AFFILIATES TO THESE TERMS AND CONDITIONS, IN WHICH CASE THE TERMS "YOU" OR "YOUR" SHALL REFER TO SUCH ENTITY AND ITS AFFILIATES. IF YOU DO NOT HAVE SUCH AUTHORITY, OR IF YOU DO NOT AGREE WITH THESE TERMS AND CONDITIONS, YOU MUST NOT ACCEPT THIS AGREEMENT AND MAY NOT USE THE SERVICES.
2. Free Services
3. Purchased Services
4. Use of the Services
5. Third-Party Providers
6. Fees and Payment for Purchased Services
7. Proprietary Rights and Copyrights
9. Warranties and Disclaimers
10. Mutual Indemnification
11. Limitation of Liability
12. Term and Termination
13. Who You Are Contracting With, Notices, Governing Law and Jurisdiction
14. General Provisions
"Affiliate" means any entity which directly or indirectly controls, is controlled by, or is under common control with the subject entity. "Control," for purposes of this definition, means direct or indirect ownership or control of more than 50% of the voting interests of the subject entity.
"Malicious Code" includes, but is not limited to, viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
"Order Form" means the ordering documents for purchases hereunder, including any addenda thereto, that are entered into between You and Us from time to time. Order Forms shall be deemed incorporated herein by reference.
"Purchased Services" means Services that You or Your Affiliates purchase under an Order Form or otherwise and are paid for, as distinguished from those provided free of charge.
"Services" means the online, Web-based applications, platform and offline software provided by Us via http://www.certivox.com or http://certivox.org and/or other designated websites as described in the User Guide, but excluding Third Party Applications. The Services may continue to change over time as we refine and add more features.
"Third-Party Applications" means online, Web-based applications and offline software products that are provided by third parties, inter operate with the Services, and are identified as third-party applications, including but not limited to those listed on the CertiVox website.
"User Guide" means the online user guide for the Services, accessible via http://www.certivox.com or http://certivox.org, as updated from time to time.
"Identity" means individuals who have been authorized to use the Services.
"Active Token" means that an M-Pin pin-pad has been accessed by an Identity for an individual device at least once in any given month.
"We," "Us" or "Our" means the CertiVox group company described in Section 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction).
"You" or "Your" means you as an individual or the company or other legal entity for which you are accepting this Agreement, and Affiliates of that company or entity. "Your Data" means all electronic data or information submitted by You to the Services.
We may make one or more Services available to You on a free of charge basis. The limitations of such Service will be noted on Our website and may be amended thereon from time to time at Our absolute discretion. We reserve the right to withdraw the free Services at any time and with or without notice. Free accounts that remain inactive for a period of 45 days may be cancelled without notice.
3.1. Provision of Purchased Services. We shall make the Purchased Services available to You pursuant to this Agreement and the relevant Order Forms during a subscription term. You agree that Your purchases hereunder are neither contingent on the delivery of any future functionality or features nor dependent on any oral or written comments made by Us regarding future functionality or features.
3.2. Subscriptions. Unless otherwise specified in the applicable Order Form, Services are purchased as "number of Active Token" subscriptions and additional Active Token subscriptions may be added during the subscription term at the prevailing published pricing.
3.3. Additional Services. You may purchase additional services from Us from time to time including, inter alia, service levels and support. Any additional services shall be described in one or more addenda to this Agreement and shall be agreed by the parties as required. Any such addenda shall be deemed to incorporate this Agreement.
4.1 Our Responsibilities. We shall: (i) provide to You support via Our website for the Purchased Services at no additional charge, and/or upgraded support if purchased separately, (ii) use commercially reasonable efforts to make the Purchased Services available 24 hours a day, 7 days a week, except for: (a) planned downtime (of which We shall give at least 8 hours notice via Our website, or (b) any unavailability caused by circumstances beyond Our reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems (other than those involving Our employees), or Internet service provider failures or delays, and (iii) provide the Purchased Services only in accordance with applicable laws and government regulations.
4.2. Your Responsibilities. You shall (i) be responsible for your compliance with this Agreement, (ii) be solely responsible for the accuracy, quality, integrity and legality of Your Data and of the means by which You acquired Your Data, (iii) use commercially reasonable efforts to prevent unauthorized access to or use of the Services, and notify Us promptly of any such unauthorized access or use, and (iv) use the Services only in accordance with the User Guide and applicable laws and government regulations.
4.3. Acceptable Use. You shall not:
5.1. Acquisition or use of Third-Party Products and Services. We may offer Third-Party Applications for sale or use under Order Forms. Any other acquisition by You of third-party products or services, including but not limited to Third-Party Applications and implementation, customization and other consulting services, and any exchange of data between You and any third-party provider, is solely between You and the applicable third-party provider. We do not warrant or support third-party products or services, whether or not they are designated by Us as "certified" or otherwise, except as specified in an Order Form. No purchase of third-party products or services is required to use the Services.
6.1. Fees. You shall pay all fees specified for Purchased Services. Except as otherwise specified herein or in an Order Form, (i) fees are quoted and payable in US Dollars or GB Pounds (ii) fees are based on Services purchased, (iii) payment obligations are non-cancellable and fees paid are non-refundable, and (iv) the number of Active Tokens purchased cannot be decreased during the relevant subscription term stated on the Order Form. Monthly subscription fees are based on monthly periods that begin on the subscription start date and each monthly anniversary thereof. Annual subscriptions are based on annual periods that begin on the subscription start date and each annual anniversary thereof.
6.2. Invoicing and Payment. You will provide Us with valid and updated credit card information, or with a valid purchase order or alternative document reasonably acceptable to Us. If You provide credit card information to Us, You authorize Us to charge such credit for all Services listed in the Order Form for the initial subscription term and any renewal subscription term(s) as set forth in Section 12.2 (Term of Purchased User Subscriptions). Such charges shall be made in advance, either annually or monthly, in accordance with the applicable Order Form. If the Order Form specifies that payment will be by a method other than a credit card, We will invoice You in advance in accordance with the relevant Order Form. Unless otherwise stated in the Order Form, invoiced charges are due net 30 days from the invoice date. You are responsible for maintaining complete and accurate billing and contact information in the Services.
6.3. Overdue Charges. If any charges are not received from You by the due date, then at Our discretion, (a) such charges may accrue late interest at the rate of 1.5% of the outstanding balance per month, or the maximum rate permitted by law, whichever is lower, from the date such payment was due until the date paid, and/or (b) We may condition future subscription renewals and Order Forms on payment terms shorter than those specified in Section 6.2 (Invoicing and Payment).
6.4. Suspension of Service and Acceleration. If any amount owing by You under this or any other agreement for Our services is 30 or more days overdue (or 10 or more days overdue in the case of amounts You have authorized Us to charge to Your credit card), We may, without limiting Our other rights and remedies, accelerate Your unpaid fee obligations under such agreements so that all such obligations become immediately due and payable, and suspend Our services to You until such amounts are paid in full.
6.5. Payment Disputes. We shall not exercise Our rights under Section 6.3 (Overdue Charges) or 6.4 (Suspension of Service and Acceleration) if the applicable charges are under reasonable and good-faith dispute and You are cooperating diligently to resolve the dispute.
6.6. Taxes. Unless otherwise stated, Our fees do not include any taxes, levies, duties or similar governmental assessments of any nature, including but not limited to value-added, sales, use or withholding taxes, assessable by any local, state, provincial, federal or foreign jurisdiction (collectively, "Taxes"). You are responsible for paying all Taxes associated with Your purchases hereunder. If We have the legal obligation to pay or collect such Taxes, the appropriate amount shall be invoiced to and paid by You, unless You provide Us with a valid tax exemption certificate authorized by the appropriate taxing authority. For clarity, We are solely responsible for taxes assessable against Us based on Our income, property and employees.
7.1. Reservation of Rights. Subject to the limited rights expressly granted hereunder, We reserve all rights, title and interest in and to the Services, including all related intellectual property rights. No rights are granted to You hereunder other than as expressly set forth herein.
7.2. License Grant. The type of license granted is determined by the following:
(a) Free, open source server-side Service: AGPL license according to Schedule B attached.
(b) Free, open source client-side Service: BSD license according to Schedule A attached.
(c) Purchased server-side Service: Closed source license according to the terms of this Agreement.
(d): Purchased client-side Service: Closed source license according to the terms of this Agreement, with Your option of using the BSD license according to Schedule A attached if You wish.
7.3. Patents. For the latest information on CertiVox's position with respect to patent licenses, please see our website: http://www.certivox.com/about-certivox/patents/
7.4. Restrictions. Unless permitted by clause 7.2 above, You shall not (i) permit any third party to access the Services except as permitted herein or in an Order Form, (ii) create derivate works based on the Services, (iii) copy, frame or mirror any part or content of the Services, other than copying or framing on Your own intranets or otherwise for Your own internal business purposes, (iv) reverse engineer the Services, or (v) access the Services in order to (a) build a competitive product or service, or (b) copy any features, functions or graphics of the Services.
7.5. Ownership of Your Data. As between Us and You, You exclusively own all rights, title and interest in and to all of Your Data.
7.6. Suggestions. We shall have a royalty-free, worldwide, transferable, sub-licensable, irrevocable, perpetual license to use or incorporate into the Services any suggestions, enhancement requests, recommendations or other feedback provided by You or your users, relating to the operation of the Services.
7.7. U.S. Federal Government End Use Provisions. We provide the Services, including related software and technology, for ultimate federal government end use solely in accordance with the following: Government technical data and software rights related to the Services include only those rights customarily provided to the public as defined in this Agreement. This customary commercial license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If a government agency has a need for rights not conveyed under these terms, it must negotiate with Us to determine if there are acceptable terms for transferring such rights, and a mutually acceptable written addendum specifically conveying such rights must be included in any applicable contract or agreement.
9.1. Mutual Warranties. Each party represents and warrants that it has the legal power to enter into this Agreement and that it will comply with all applicable laws and regulations in their performance under this Agreement.
9.2. Disclaimer. Under no circumstances will We be held accountable for any loss of Your data.
9.3. We intend for the information contained on Our website and Our Services to be accurate and reliable; however, errors sometimes may occur. In addition, We may make changes and improvements to the information provided herein at any time. WE PROVIDE OUR SERVICES "AS IS," AND THE ENTIRE RISK AS TO SATISFACTORY QUALITY, PERFORMANCE, ACCURACY, AND EFFORT IS WITH YOU. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, CERTIVOX, ITS AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS AND/OR SUPPLIERS (EACH, A "CERTIVOX PARTY," AND COLLECTIVELY, THE "CERTIVOX PARTIES") MAKE NO WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, AND EACH PARTY SPECIFICALLY DISCLAIMS ALL IMPLIED WARRANTIES, INCLUDING ANY WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW.
10.1. Indemnification by Us. We shall defend You against any claim made or brought against You by a third party alleging that use of Our Services infringes or misappropriates the intellectual property rights of a third party or violates applicable law, and shall indemnify You for any damages finally awarded against, and for reasonable legal fees incurred by You in connection with any such claim; provided, that You (a) promptly give Us written notice of the claim; (b) give Us sole control of the defense and settlement of the claim (provided that We may not settle any claim unless the settlement unconditionally release You of all liability); and (c) provide to Us all reasonable assistance, at Your expense.
10.2 Mitigation of Infringement Action. If permitted use of Our Services is, or in Our reasonable opinion are likely to become, enjoined or materially diminished as a result of a proceeding arising under clause 10.1, then We will either: (a) procure the continuing right to use of the applicable Service; (b) replace or modify the applicable CertiVox Service in a functionally equivalent manner so that it no longer infringes; or if, despite its commercially reasonable efforts, We are unable to do either (a) or (b), either party may terminate this Agreement.
10.3. Exclusions from Obligations. We will have no obligation under Sections 10.1 or 10.2 for any infringement or misappropriation to the extent that it arises out of or is based upon: (a) use of the Services in combination with other products or services if such infringement or misappropriation would not have arisen but for such combination; (b) designs, requirements, or specifications required by or provided by You, if the alleged infringement or misappropriation would not have arisen but for the compliance with such designs, requirements, or specifications; (c) use of the Services for purposes not intended or outside the scope of the license granted to You; (d) Your failure to use the Services in accordance with instructions provided by Us, if the infringement or misappropriation would not have occurred but for such failure; or (e) any modification of the Services not made or authorized in writing by Us where such infringement or misappropriation would not have occurred absent such modification.
10.4. Exclusive Remedy. This Section 10 (Indemnification) states the indemnifying party's sole liability to, and the indemnified party's exclusive remedy against, the other party for any type of claim described in this Section.
11.1. TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL WE, OUR AFFILIATES, RESELLERS, DISTRIBUTORS, SERVICE PROVIDERS, OFFICERS, EMPLOYEES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL (INCLUDING LOSS OF USE, DATA, BUSINESS, OR PROFITS) DAMAGES, REGARDLESS OF LEGAL THEORY, WHETHER OR NOT WE HAVE BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES, AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE OUR AGGREGATE LIABILITY FOR ALL CLAIMS RELATING TO THE SERVICES SHALL NOT EXCEED THE AMOUNT PAID BY YOU TO US FOR THE PAST TWELVE MONTHS OF THE SERVICES IN QUESTION
12.1. Term of Agreement. This Agreement commences on the date You accept it and continues until all User subscriptions granted in accordance with this Agreement have expired or been terminated. Free accounts that remain inactive for a period of 45 days may be cancelled without notice.
12.2. Term of Purchased Identity Subscriptions. Identity subscriptions purchased by You commence on the start date specified in the applicable Order Form and continue for the subscription term specified therein. Except as otherwise specified in the applicable Order Form, all Identity subscriptions shall automatically renew for additional periods equal to the expiring subscription term or one year (whichever is shorter), unless either party gives the other notice of non-renewal at least 30 days before the end of the relevant subscription term.
12.3. Termination for Cause. A party may terminate this Agreement for cause: (i) upon 30 days written notice to the other party of a material breach if such breach remains uncured at the expiration of such period, or (ii) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors.
12.4. Refund or Payment upon Termination. Upon any termination for cause by Us, You shall pay any unpaid fees covering the remainder of the term of all Order Forms after the effective date of termination. In no event shall any termination relieve You of the obligation to pay any fees payable to Us for the period prior to the effective date of termination.
12.5. Surviving Provisions. Section 6 (Fees and Payment for Purchased Services), 7 (Proprietary Rights), 8 (Privacy), 9.3 (Disclaimer), 10 (Indemnification), 11 (Limitation of Liability), 12.4 (Refund or Payment upon Termination), 13 (Who You Are Contracting With, Notices, Governing Law and Jurisdiction) and 14 (General Provisions) shall survive any termination or expiration of this Agreement.
13.1. General. You are contracting with: CertiVox UK Ltd, 81 Rivington Street, London EC2A 3AY, UK. Notices should be addressed to: Director, EMEA Sales Operations. The governing law is: England and Wales. The courts having exclusive jurisdiction are: London, United Kingdom.
13.2. Manner of Giving Notice. Except as otherwise specified in this Agreement, all notices, permissions and approvals hereunder shall be in writing and shall be deemed to have been given upon: (i) personal delivery, or the first business day after sending by email. E-mail notices should be to firstname.lastname@example.org. Notices to You shall be addressed to the contact designated by You for Your relevant Services account, and in the case of billing-related notices, to the relevant billing contact designated by You.
13.3. Agreement to Governing Law and Jurisdiction. Each party agrees to the applicable governing law above without regard to choice or conflicts of law rules, and to the exclusive jurisdiction of the applicable courts above.
14.1. Export Compliance. Each party shall comply with the export laws and regulations of the United Kingdom, and the party using the Services shall comply with any relevant regulations governing the import of cryptography in the jurisdiction where the Services are consumed. Without limiting the foregoing, (i) each party represents that it is not named on any U.S. or U.K. government list of persons or entities prohibited from receiving exports, and (ii) You shall not permit your users to access or use Services in violation of any relevant Government export embargo, prohibition or restriction.
14.2. Relationship of the Parties. The parties are independent contractors. This Agreement does not create a partnership, franchise, joint venture, agency, fiduciary or employment relationship between the parties.
14.3. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
14.4. Waiver and Cumulative Remedies. No failure or delay by either party in exercising any right under this Agreement shall constitute a waiver of that right. Other than as expressly stated herein, the remedies provided herein are in addition to, and not exclusive of, any other remedies of a party at law or in equity.
14.5. Severability. If any provision of this Agreement is held by a court of competent jurisdiction to be contrary to law, the provision shall be modified by the court and interpreted so as best to accomplish the objectives of the original provision to the fullest extent permitted by law, and the remaining provisions of this Agreement shall remain in effect.
14.6. Force Majeure. We shall not be deemed in default of the Agreement to the extent that performance of Our obligations or attempts to cure any breach are delayed or prevented by reason of any act of God, fire, natural disaster, accident, act of government, shortages of materials or supplies or any other cause beyond the reasonable control of Us.
14.7. Legal Fees. You shall pay on demand all of Our reasonable legal fees and other costs incurred by Us to collect any fees or charges due Us under this Agreement following Your breach of Section 6.2 (Invoicing and Payment)
14.8. Assignment. Neither party may assign any of its rights or obligations hereunder, whether by operation of law or otherwise, without the prior written consent of the other party (not to be unreasonably withheld). Notwithstanding the foregoing, either party may assign this Agreement in its entirety (including all Order Forms), without consent of the other party, to its Affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets not involving a direct competitor of the other party. A party's sole remedy for any purported assignment by the other party in breach of this paragraph shall be, at the non-assigning party's election, termination of this Agreement upon written notice to the assigning party. Subject to the foregoing, this Agreement shall bind and inure to the benefit of the parties, their respective successors and permitted assigns.
14.9. Modifications. We may revise these Terms from time to time and the most current version will always be posted on Our website. If a revision, in our sole discretion, is material we will notify you (for example via email to the email address associated with your account). Other changes may be posted to Our blog or terms page, so please check those pages regularly. By continuing to access or use the Services after revisions become effective, You agree to be bound by the revised Terms. If You do not agree to the new terms, please stop using the Service.
14.10. Communication with You. We reserve the right to send messages to you to inform you of (a) changes or additions to Our website, our Services or this Agreement, (b) violations of this Agreement or actions relating to your privilege to access and use the Services, or (c) any other matter related to Our website, the Services or this Agreement. Nothing in this provision shall require or obligate us to send any notice if no notice is required or mandated elsewhere in this Agreement.
14.11. Press Release and Publicity. You agree that We may identify you as a user of the Services in a press release provided that the You shall have the right to review and approve, such approval not to be unreasonably withheld, such press release prior to its issuance if the press release refers to the Your product(s). In addition You agree We may use Your logo on Our website and other marketing materials.
14.12. Branding. You agree to comply with the branding requirements as described at http://www.certivox.com/about-certivox/media-and-brand-resources/
14.13. Arbitration. Any dispute or difference arising out of or in connection with this Agreement shall be determined by the appointment of a single arbitrator to be agreed between the parties, or failing agreement within fourteen days, after either party has given to the other a written request to concur in the appointment of an arbitrator, by an arbitrator to be appointed by the President or a Deputy President of the Chartered Institute of Arbitrators
14.14. Entire Agreement. This Agreement, including all exhibits and addenda hereto and all Order Forms, constitutes the entire agreement between the parties and supersedes all prior and contemporaneous agreements, proposals or representations, written or oral, concerning its subject matter. No modification, amendment, or waiver of any provision of this Agreement shall be effective unless in writing and either signed or accepted electronically by the party against whom the modification, amendment or waiver is to be asserted. However, to the extent of any conflict or inconsistency between the provisions in the body of this Agreement and any exhibit or addendum hereto or any Order Form, the terms of such exhibit, addendum or Order Form shall prevail. Notwithstanding any language to the contrary therein, no terms or conditions stated in Your purchase order or other order documentation (excluding Order Forms) shall be incorporated into or form any part of this Agreement, and all such terms or conditions shall be null and void.
For this purpose we use a BSD Clause 3-License, as described below:
Copyright © 2014, CertiVox UK Ltd
All rights reserved
Redistribution and use in source and binary forms, with or without modification, are permitted provided that the following conditions are met:
* Redistributions of source code must retain the above copyright notice, this list of conditions and the following disclaimer.
* Redistributions in binary form must reproduce the above copyright notice, this list of conditions and the following disclaimer in the documentation and/or other materials provided with the distribution.
* Neither the name of the CertiVox UK Ltd nor the names of its contributors may be used to endorse or promote products derived from this software without specific prior written permission.
THIS SOFTWARE IS PROVIDED BY THE COPYRIGHT HOLDERS AND CONTRIBUTORS "AS IS" AND ANY EXPRESS OR IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE ARE DISCLAIMED. IN NO EVENT SHALL COPYRIGHT HOLDER BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES (INCLUDING, BUT NOT LIMITED TO, PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES; LOSS OF USE, DATA, OR PROFITS; OR BUSINESS INTERRUPTION) HOWEVER CAUSED AND ON ANY THEORY OF LIABILITY, WHETHER IN CONTRACT, STRICT LIABILITY, OR TORT (INCLUDING NEGLIGENCE OR OTHERWISE) ARISING IN ANY WAY OUT OF THE USE OF THIS SOFTWARE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGE.
For this purpose we use the GNU Affero General Public License, Version 3 (AGPL-3.0), as described below:
Copyright © 2014, CertiVox UK Ltd
All rights reserved
This program is free software: you can redistribute it and/or modify it under the terms of the GNU Affero General Public License as published by the Free Software Foundation, either version 3 of the
License, or (at your option) any later version.
This program is distributed in the hope that it will be useful, but WITHOUT ANY WARRANTY; without even the implied warranty of MERCHANTABILITY or FITNESS FOR A PARTICULAR PURPOSE. See the GNU Affero General Public License for more details.
You should have received a copy of the GNU Affero General Public License along with this program. If not, see http://www.gnu.org/licenses/.